People v. Davis

585 N.E.2d 214, 223 Ill. App. 3d 580, 165 Ill. Dec. 818, 1992 Ill. App. LEXIS 3
CourtAppellate Court of Illinois
DecidedJanuary 9, 1992
Docket2-89-1302
StatusPublished
Cited by5 cases

This text of 585 N.E.2d 214 (People v. Davis) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Davis, 585 N.E.2d 214, 223 Ill. App. 3d 580, 165 Ill. Dec. 818, 1992 Ill. App. LEXIS 3 (Ill. Ct. App. 1992).

Opinion

JUSTICE INGLIS

delivered the opinion of the court:

Defendant, James H. Davis, appeals his conviction after a jury trial on two counts of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 13(a)(1), (a)(2)) and three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 16(c)(1)(ii), (d)). Concurrent sentences of four years’ imprisonment for criminal sexual assault and three years’ imprisonment for aggravated criminal sexual abuse were imposed. On appeal, defendant contends that (1) the State failed to prove guilt beyond a reasonable doubt, (2) the complainant was improperly found competent to testify, (3) the trial court erred in not granting a mistrial for the violation of a motion in limine, and (4) the State’s expert witness was improperly qualified to testify. We affirm.

On December 27, 1988, defendant was indicted on eight counts of aggravated criminal sexual abuse and four counts of criminal sexual assault. Count I was criminal sexual assault (CSA), penis to vagina and no consent. Count II was CSA, mouth to vagina and no consent. Count III was CSA, penis to vagina by force. Count IV was CSA, mouth to vagina by force. Count V was aggravated criminal sexual abuse (ACSA), penis to vagina with person at least 13 years old, but under 17 years old and defendant at least five years older than complainant (age). Count VI was ACSA, mouth to vagina and age. Count VII was ACSA, touching vagina and age. Count VIII was ACSA, touching breasts and age. Count IX was ACSA, mouth to breast and age. Count X was ACSA, touching vagina by force. Count XI was ACSA, touching breasts by force. Count XII was ACSA, mouth to breast by force. All counts alleged sexual conduct with D.S., the 17-year-old daughter of defendant’s girlfriend, M.S. D.S. suffers from Down’s syndrome and has the mental capacity of a five-year-old child.

Before trial, a competency hearing was conducted to determine D.S.’s ability to testify. The court found D.S. competent, but recognized that cross-examination would be difficult. Also before trial, the trial court granted defendant’s motion in limine barring any testimony, likely to be elicited from M.S., concerning previous allegations of sexual misconduct by defendant in March 1988. The court stated it would allow this testimony only on rebuttal.

The State’s first witness was Dr. Martin Dunsky, an emergency room physician at Copley Hospital, where D.S. was taken after the alleged incident. Dr. Dunsky testified that on October 15, 1988, at approximately 3:40 p.m., he collected specimens to complete a sexual assault kit, but was unable to perform an internal vaginal exam due to D.S.’s uncooperativeness. Dr. Dunsky asked D.S. why she was at the hospital, and she replied that defendant had kissed and licked her vagina. It was unclear from D.S.’s answers whether D.S. and defendant had intercourse or even whether D.S. was forced to perform oral sex on defendant. Dr. Dunsky testified that D.S. was calm during the interview and examination, except when a vaginal exam was attempted. He saw no signs of physical abuse on D.S. Dr. Dunsky did not examine M.S. and testified he had no occasion to determine whether M.S. had been physically abused.

D.S. was the next person to testify with assistance from an interpreter. After she stated her name, age, brother’s name and apartment number correctly, D.S. identified defendant as the person who took off her clothes. D.S. testified that Davis had kissed her on the lips, buttocks, breasts and vagina. Using anatomically correct dolls, D.S. showed how defendant allegedly took his and her clothes off, placed his penis in her vagina, kissed her breasts, licked and kissed her vagina and had D.S. perform oral sex.

On cross-examination, D.S. testified how defendant allegedly choked her, hit her on the arm and threatened her with a knife. At this point in the cross-examination, D.S.’s testimony became incoherent. It is unclear whether D.S. was recalling events that had happened to her or her mother and whether they occurred on the day in question or in the past. When D.S. regained her composure, she stated the name of the school she attended, her teacher, the names of her friends and the name of the defense attorney, whom she had previously met. On redirect examination, D.S. identified the judge and explained what she did at school. D.S. testified that defendant held down her arms and choked her. Again, it was unclear whether she was recalling the day of the alleged incident or another day in which D.S. saw defendant do this to her mother. But, D.S. reiterated that defendant kissed her vagina. On re-cross-examination, D.S. testified that her mother fought with defendant.

Milton S., the complainant’s brother, was the next witness. Milton testified that on the day in question he lived with his mother, sister, and defendant. Milton was alone in the home with D.S. when defendant arrived home at approximately 2 p.m. Defendant told Milton he could go outside but to be back by 7 p.m. Milton returned at approximately 6:30 p.m., but no one was home.

The next witness for the State was D.S.’s mother, M.S. M.S. testified that she moved to Aurora to marry defendant, but did not marry him because “something wasn’t right.” She continued to live with him though. She lived with defendant off and on for six years. According to M.S., defendant stopped living with her and the family in March 1988, but returned in July. M.S. stated that D.S. suffers from Down’s syndrome. M.S. testified that she had no conversations with D.S. about sex, until March 1988 when D.S. told M.S. about “something that happened to her that someone had did [sic] to her.”

Turning to the events of October 15, 1988, M.S. testified that she was at work that afternoon. Defendant called her at work sometime after 1 p.m. but spoke to her supervisor. At approximately 1:30 p.m., after M.S. made several mistakes at work, the supervisor told M.S. to go home. According to M.S., she took the bus to the Salvation Army, where defendant worked, to see if he was there. After discovering that he was not there, M.S. took the bus home. When she got home, she entered the apartment through the locked back door. M.S. testified that she walked into the living room and found defendant lying on the floor on top of D.S. M.S. could see defendant was wearing a light-colored shirt and that his buttocks were naked. M.S. pulled defendant off her daughter and told D.S. to put on her pants and another blouse from the clothes lying on the couch. M.S. also testified that the blouse D.S. was wearing was torn and and that M.S. threw it away. M.S. stated that she then attempted to call the police, but defendant tried to choke her with the telephone cord. M.S. pushed defendant away, and he ran into the kitchen and came out with a knife in his hand. According to M.S., she grabbed D.S. and ran out the front door to the apartment of their neighbor, Betty Yankaway.

M.S. testified that she called the police from Betty Yankaway’s apartment. M.S. says she told Betty that defendant raped D.S. When the police arrived, they spoke to D.S. M.S. said that she was too upset to speak with the police. Later, the police took D.S. and M.S. to the hospital. According to M.S., D.S. became more introverted, had nightmares, and gained weight after the incident.

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Cite This Page — Counsel Stack

Bluebook (online)
585 N.E.2d 214, 223 Ill. App. 3d 580, 165 Ill. Dec. 818, 1992 Ill. App. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-davis-illappct-1992.